Chimni - Third World Approaches To International Law

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International Community Law Review 8: 327, 2006.

2006 Koninklijke Brill NV. Printed in the Netherlands.
Third World Approaches to International Law: A Manifesto

B.S. CHIMNI*
1. Introduction
The threat of recolonisation is haunting the third world.1 The process of globalization
has had deleterious effect on the welfare of third world peoples. Three billionaires in
the North today hold assets more than the combined GNP of all the least developed
countries and its 600 million people2 International law is playing a crucial role in helping legitimize and sustain the unequal structures and processes that manifest themselves in the growing north-south divide. Indeed, international law is the principal
language in which domination is coming to be expressed in the era of globalization.3
It is displacing national legal systems in their importance and having an unprecedented
impact on the lives of ordinary people. Armed with the powers of international financial and trade institutions to enforce a neo-liberal agenda, international law today
threatens to reduce the meaning of democracy to electing representatives who, irrespective of their ideological affiliations, are compelled to pursue the same social and
economic policies. Even international human rights discourse is being manipulated
to further and legitimize neo-liberal goals. In brief, the economic and political independence of the third world is being undermined by policies and laws dictated by the
first world and the international institutions it controls.
Unfortunately, TWAIL (third world approaches to international law) has neither
been able to effectively critique neo-liberal international law or project an alternative vision of international law. The ideological domination of Northern academic
* I would like to thank Antony Anghie for his comments on an earlier draft of the paper. The usual caveat
applies. First published in: Antony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora Okafor (Eds),
The Third World and International Order: Law, Politics and Globalization (Martinus Nijhoff Publishers,
2003).
1 The word recolonisation is being inter alia used to indicate first, the reconstitution of the relationship
between State and international law so as to undermine the autonomy of third world States and to the disadvantage of its peoples. Second, the expansion of international property rights which are to be enforced
by third world States without possessing the authority to undertake the task of redistribution of incomes and
resources. Third, the relocation of sovereign economic powers in international trade and financial institutions. Fourth, the inability of third world states to resist the overwhelming ideological and military dominance of the first world.
2 See UNDP, Human Development Report (1999).
3 We adopt here the definition of domination offered by Thompson: We can speak of domination when
established relations of power are systematically asymmetrical, that is, when particular agents or groups
of agents are endowed with power in a durable way which excludes, and to some significant degree remains
inaccessible to, other agents or groups of agents, irrespective of the basis upon which such exclusion is carried out. See J. Thompson, Ideology and Modern Culture, in The Polity Reader in Social Theory (1994)
133 at 136.
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institutions, the handful of critical third world international law scholars, the problems
of doing research in the poor world, and the fragmentation of international legal studies has, among other things, prevented it from either advancing a holistic critique of
the regressive role of globalising international law or sketching maps of alternative
futures. It is therefore imperative that TWAIL urgently finds ways and means to globalize the sources of critical knowledge and address the material and ethical concerns
of third world peoples.4
This paper seeks to take a small step in that direction. It presents a critique of
globalising international law and proposes a set of strategies directed towards creating a world order based on social justice. The aim is to initiate a debate on the subject
rather than to make a definitive statement. The paper is divided into five further sections. Section II considers whether it is still meaningful to talk about a third world.
Section III discusses the different ways in which the relationship between State and
international law is being reconstituted in the era of globalization to the distinct
disadvantage of third world States and peoples. Section IV examines the ideology of
globalising international law. Section V looks at the theory and process of resistance
to unjust and oppressive international laws. Section VI identifies certain elements of
a future TWAIL agenda. Section VII contains brief final remarks.
2. End of the Third World?

It is very often argued that the category third world is anachronistic today and without purchase for addressing the concerns of its peoples.5 Indeed, from the very inception it is said to have obscured specificity in its quest for generalizability.6 The end
of the cold war (or the demise of the second world) has only strengthened the tendency
towards differentiation.7 According to Walker, the great dissolutions of 1989 shattered all cold war categories and as a label to be affixed to a world in dramatic motion
the Third World became increasingly absurd, a tattered remnant of another time . . .8
It can hardly be denied that the category third world is made up of a diverse set
of countries, extremely varied in their cultural heritages, with very different historical
experiences and marked differences in the patterns of their economies . . .9 But too
much is often made of numbers, variations, and differences in the presence of structures and processes of global capitalism that continue to bind and unite. It is these structures and processes that produced colonialism and have now spawned neo-colonialism.
4 Our political referents third world or third world peoples is not there in some primordial, naturalistic sense or reflect a unitary or homogeneous political object. See H. Bhabha, The Location of Culture,
at 26 (1994). There is the class and gender divides, among others, to be reckoned with.
5 See J. Ravenhill, The North-South Balance of Power, 66:4 International Affairs 731 (1990). See also
M. Berger, The End of the Third World, 15:2 Third World Quarterly, 257275 (1994).
6 See S.N. Macfarlane, Taking Stock: The Third World and the End of the Cold War, in L. Fawcett and
Y. Sayigh (Eds.), The Third World Beyond the Cold War: Continuity and Change 15, at 21 (1999).
7 Id.
8 See R.B.J. Walker, Space/Time/Sovereignty, in M.E. Denham and M.O. Lombardi (Eds.), Perspectives
on Third World Sovereignty: The Postmodern Paradox 13, at 15 (1996).
9 See P. Worsley, The Three Worlds: Culture and World Development 306 (1984).
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THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO
In other words, once the common history of subjection to colonialism, and/or the
continuing underdevelopment and marginalization of countries of Asia, Africa and
Latin America is attached sufficient significance, the category third world assumes
life.
In any case, the diversity of the social world has not prevented the consolidation and
articulation of international law in universal abstractions. Today, international law
prescribes rules that deliberately ignore the phenomena of uneven development in
favor of prescribing uniform global standards. It has more or less cast to flames the
principal of special and differential treatment.10 In other words, the process of aggregating in international law a diverse set of countries with differences in the patterns of
their economies also validates the category third world. That is to say, because legal
imagination and technology tend to transcend differences in order to impose uniform
global legal regimes, the use of the category third world is particularly appropriate
in the world of international law. It is a necessary and effective response to the abstractions that do violence to difference. Its presence is, to put it differently, crucial to organizing and offering collective resistance to hegemonic policies.
Unnecessary importance is often attached to the end of the cold war. The growing
north-south divide is sufficient evidence, if any were needed, of the continuing
relevance of the category third world. Its continuing usefulness lies in pointing to
certain structural constraints that the world economy imposes on one set of countries
as opposed to others. At one point, the arrival of the newly industrializing countries was
seen to be a definitive pronouncement on the inadequacy of the category third
world.11 But their fate in the financial crisis of the late nineties reveals that the divide
between these countries and the rest is not as sharp as it first appeared. Furthermore,
as critics of the category third world concede, the alternative of multiplying the number of categories to cover distinctive cases, may not be of much help. Worsley himself
recognized that we can all think of many difficulties, exceptions, omissions, etc. for
any system of classifying countries, even if we increase the number of worlds.12 Crow
has aptly pointed out in this context that a typology which has as many types as it has
cases is of limited analytical value since it has not made the necessary move beyond
acknowledgement of the uniqueness of each individual case to identifying key points
of similarity and difference.13
However, the presence or absence of the third world, it is worth stressing, is not
something that is either to be dogmatically affirmed or completely denied. It is not to
be viewed as an either/or choice in all contexts. The category third world can coexist with a plurality of practices of collective resistance. Thus, regional and other group
identities do not necessarily undermine aggregation at the global level. These can coexist with transregional groupings and identities. In the final analysis, the category
10 The principle has been replaced in different legal regimes by the idea of transitional periods or its
extension to least developed countries. Where special and differential treatment has been granted to all third
world countries the obligation has been cast in soft law language.
11 See N. Harris, The End of the Third World: Newly Industrializing Countries and the Decline of an
Ideology (1987).
12 See Development in P. Worsley (Ed.), The New Introducing Sociology 2 (1987).
13 See C. Graham, Comparative Sociological and Social Theory: Beyond the Three Worlds 8 (1997).
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third world reflects a level of unity imagined and constituted in ways which would
enable resistance to a range of practices which systematically disadvantage and subordinate an otherwise diverse group of people. This unity can express itself in diverse
ways. How the internal unity of the third world is to be maintained amidst a plurality of individual concerns and group identities can only be determined through practical dialogue which abandons a damaging a priorism. There is, to put it differently,
no substitute for concrete analysis of particular international law regimes and practices
to determine the demands, strategy and tactics of the third world.
But there is a need to be alert to the politics of critique of the category third world.
To misrepresent and undermine the unity of the Other is a crucial element in any strategy of dominance. From which flows the suggestion that the category third world is
irrelevant to the era of globalization. It represents the old divide and rule strategy with
which third world peoples are exceedingly familiar. Such a policy seeks to prevent a
global coalition of subaltern States and peoples from emerging through positing divisions of all kinds. Thereby, the transnational elite seeks to subvert collective modes of
reflection on common problems and solutions.
Critique is not the only weapon that hegemonic States deploy against the unity of
the third world. Dominant States also take direct measures to weaken the third world
coalition. Thus, for example, the North did not take kindly in the past to the Bandung
spirit.14 As Samir Amin writes:
Is it just accidental that a year later, France, Britain, and Israel attempted to overthrow Nasser through the
1956 aggression. The true hatred that the West had for the radical third world leaders of the 1960s, Nasser
in Egypt, Sukarno in Indonesia, Nkrumah in Ghana, Modibo Keita in Mali, almost all overthrown at about
the same time (19651968), a period which also saw the Israeli aggression of June 1967, shows that the
political vision of Bandung was not accepted by imperialist capital. It was thus a politically weakened nonaligned camp that had to face the global economic crisis after 197071. The Wests absolute refusal to
accept the proposal for a New International Economic Order shows that there was a real logic linking the
political dimension and the economic dimension of the Afro-Asian attempt crystallised after Bandung.15
One could add to the above list names (Lumumba, Che Guevara, Allende) and left
movements (Indonesia, Nicaragua, Angola) that have been at the receiving end of
Northern subversive strategies.16 Billions of dollars have been spent to undo regimes
and movements not favourable to the dominant States. It has prevented an effective
third world coalition from emerging as a counterweight to the unity of the first world.
It is left to emphasize that our understanding of the category third world diverges
sharply from that of its ruling elite. The latter scrupulously overlook the class and gender divides within. Furthermore, in the era of globalization, the ruling elite in the third
14 In 1955 an Asian African Conference was held in Bandung in Indonesia. The importance of Bandung
was that for the first time a group of former colonial territorries [29 States attended] had met together without any of the European powers, and all those taking part . . . this was an assertion of their independence.
See P. Willets, The Non-Aligned Movement: Origins of a Third World Alliance 3 (1978). Later came the
non-aligned movement which had its roots in Bandung.
15 See A. Samir, The Social Movements in the Periphery: An End to National Liberation, in S. Amin
et al. (Eds.), Transforming the Revolution: Social Movements and the World-System 96, at (1990).
16 See P. James and V. Steve, The Decline of Revolutionary Politics: Capitalist Detour and the Return of
Socialism, 24 Journal of Contemporary Asia 1, at 1 (1994).
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world is coming to be an integral part of an emerging transnational ruling elite that

seeks to establish the global rule of transnational capital on the pretext of pursuing
national interests. The welfare of the peoples of the third world does not have priority in this scheme of things. Thus, there is an obvious dialectic between struggles
inside third world countries and in external fora. There can be little progress on one
front without some progress in the other. At the same time, a global coalition of the poor
countries remains a viable model of collective resistance. For the aspirations of the
people, despite the emergence of the non-governmental organizations, is still most
effectively represented by the State in international fora. But the third world State has
to be compelled through peoples struggles to engage in collective action.
3. State and International Law in the Era of Globalization

The State is the principal subject of international law. But the relationship between
State and international law continually evolves. Each era sees the material and ideological reconstitution of the relationship between state sovereignty and international
law. The changes are primarily driven by dominant social forces and States of the time.
The era of globalisation is no exception to this rule. Globalisation is not an autonomous
phenomenon. It is greatly facilitated by the actions of States, in particular dominant
States.17 The adoption of appropriate legal regimes plays a critical role in this process.18
The on going restructuring of the international legal system is not entirely dissimilar
to the one that saw capitalism establish and consolidate itself in the national sphere. In
that case the State shaped itself around pre-existing political structures, inserting itself
among them, forcing upon them whenever it could, its authority, its currency, its taxation, justice and language of command. This was a process of both infiltration and
superimposition, of conquest and accommodation.19 In this case what is at stake is the
creation of a unified global economic space with appropriate international law and
international institutions to go along. Towards this end, international law is coming to
define the meaning of a democratic State and relocating sovereign economic powers in international institutions, greatly limiting the possibilities of third world States
to pursue independent self-reliant development. These developments seek to accommodate the interests of a transnational ruling elite which has come to have unprecedented influence in shaping global policies and law.
Mapping the changes which are visiting the relationship between State and international law and grasping the consequences of the metamorphosis is the most crucial
task before third world international law scholars. For the transformed relationship
between State sovereignty and international law may have far reaching consequences
for the peoples of the third world. Attention may be drawn in this regard to some
17 See B. Jones, The World Upside Down? Globalisation and the Future of the State 4 (2000), Carnoy,
Martin and Castells, Manuel, Globalisation, the Knowledge Society, and the Network State: Poulantzas at
the Millennium, 1 Global Networks 1, at 5 (2001).
18 Id., at 63.
19 See F. Braudel, Civilization and Capitalism 15th18th Century, Vol. II, 513 (1979).
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of the major overlapping developments that are redefining and reconstituting the
relationship of State and international law and institutions, albeit with differential
impact on third world States and peoples.
First, international law is now in the process of creating and defining the democratic
State.20 It has led to the internal structure of States coming under the scrutiny of international law. An emerging international law norm requires States to hold periodic and
genuine elections. However, it pays scant attention to the fact that formal democracy
excludes large, in particular marginal groups, from decision making power.21 The task
of low intensity democracies, from all evidence, is to create the conditions in which
transnational capital can flourish. To facilitate this, the State (read the third world State)
has seceded, through voluntary undertaken obligations, national sovereign economic space (pertaining to the fields of investment, trade, technology, currency, environment etc.) to international institutions that enforce the relevant rules.22 But despite
the relocation of sovereign powers in international institutions, international law does
not take global democracy seriously. Global or transnational systems of representation
and accountability are yet to be established. In brief, international law today operates
with a set of ideas about democracy that offers little support for efforts either to deepen
democracy within nation-states or to extend democracy to transnational and global
decision-making.23
Second, international law now aspires to directly regulate property rights. A key
feature of the new age is the internationalization of property rights. By internationalization of property rights is meant their specification, articulation and enforcement
through international law or the fact that the change in the form and substance of property rights is brought about through the intervention of international law. There are a
series of overlapping legal developments/measures through which international property rights are being entrenched: (a) the international specification and regulation of
intellectual property rights; indeed, as one observer notes, TRIPS [i.e., Agreement on
20 See T. Franck, The Emerging Right to Democratic Governance, 86 American Journal of International
Law 46, at 46 (1992).
21 See J. Crawford and M. Marks, The Global Democracy Deficit: an Essay in International Law and its
Limits, in D. Archibugi et al. (Eds.) Re-imagining Political Community: Studies in Cosmopolitan Democracy
7290, at 80 (1998).
22 With respect to the WTO two points need to be made as regards the voluntary nature of the obligations undertaken under the Final Act of the Uruguay Round of Trade Negotiations. First, the negotiations
leading to the adoption of the agreements constituting the Final Act lacked transparency and the practice of
green room consultations left a large number of third world countries effectively out of the negotiations.
Second, the entire set of agreements were offered as a single undertaking. Therefore, States could not choose
the agreements it wished to accept. This was justified on the ground that the Final Act represented a package deal that would unravel if the pick and choose policy were permitted. However, it is now clear that the
third world countries gained little from the Uruguay Round agreements undermining the legitimacy of the
single undertaking practice. It explains the launch of the Doha round of trade negotiations as a development
round. So far as the system of conditionalities recommended by international financial institutions is concerned their acceptance is voluntary in the most tenuous sense. For the fact of the matter is that third world
countries have little choice but to abide by them.
23 Id., at 85. That is, until their absence manifests itself in internal or international wars, and the gross
violation of human rights which accompany them, when international law is brought back in to reconstruct
formal democracy.
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Trade-Related Aspects of Intellectual Property Rights] marks the beginning of the

global property epoch;24 (b) the privatization of State owned property through the
medium of international financial institutions and international monetary law;
(c) the adoption of a network of international laws that lift constraints on the mobility
and operation of the transnational corporate sector;25 (d) the definition of sustainable
development in a manner which implies the redistribution of property rights between
the first and the third worlds,26 and also, subject to some conditions, the regulation of
process and production methods;27 and (e) the metamorphosis of the area of common
heritage of humankind (be it the domain of knowledge, environment or specific geographical spaces such as the seabed) into a system of corporate property rights.28
24 See J. Braithwaite and P. Drahos, Global Business Regulation Cambridge: Cambridge 63 (2000). For
the text of the Agreement on TRIPS, see WTO The Results of the Final Act of the Uruguay Round of
Multilateral Trade Negotiations Geneva 365 (1994).
25 A whole host of international laws seek to free transnational capital of spatial and temporal constraints.
This has been achieved, or is in the process of being achieved, first, through hundreds of bilateral investment protection treaties between the industrialized and third world countries. By 1999, 1857 BITS were
concluded (up from 165 at the end of the seventies and 385 at the end of eighties), a predominant number
of which were concluded between the industrialized world and the third world countries, see UNCTAD,
Bilateral Investment Treaties 1959 to 1999 1 (2000). Second, the Agreement on Trade Related Investment
Measures took a number of measures in this direction viz. local content and balancing requirements cannot
be imposed on foreign capital. For the text of the agreement see WTO, The Results of the Final Act of the
Uruguay Round of Multilateral Trade Negotiations (1994). Third, there are soft law texts such as the World
Bank Guidelines on Foreign Investment (1992), which recommend that constraints on the entry and operation of transnational capital be limited. (For text see UNCTAD, International Investment Instruments:
A Compendium vol. I Multilateral Instruments 247 (1996). Fourth, there is the proposed negotiation of a
multilateral agreement on investment on the agenda of Doha round of trade negotiations. See WTO,
WT/MIN (01)/DEC/W/1, 14 November 2001 Ministerial Conference, Fourth Session, Doha, 914
November 2001: Ministerial Declaration. Fifth, a Multilateral Investment Guarantee Agency (MIGA) has
been established under the auspices of the World Bank to insure foreign capital against non commercial risks.
(For the text of the agreement establishing MIGA see UNCTAD, (1996), at 213). Sixth, there is the
September 1997 statement of the IMF Interim Committee endorsing a move towards capital account
convertibility despite all evidence showing the grave consequences for the economies embracing it. This is
in contrast with original obligations contained in the 1944 Articles of Agreement which called for the avoidance of restrictions on payments for current transactions see J. Bhagwati, The Capital Myth, Foreign Affairs
7 (May/June 1998). Finally, mention needs to be made of the fact that the Draft Code of Conduct on
Transnational Corporations which imposed certain duties respect for host country goals, transparency,
respect for environment etc. has been abandoned (for the text see UNCTAD, (1996), above at 161. And
the UN Centre for Transnational Corporations which was bringing some transparency to the functioning of
TNCs was shut down in 1993.
26 For as industrial countries developed, global private rights were granted to polluters; now, developing countries are asked to agree to a redistribution of those property rights without compensation for already
depleted resources, see P. Uimonen and J. Whalley, Environmental Issues in the New Trading System 66
(1997).
27 See Uimonen and Whalley, id. See also B.S. Chimni, WTO and Environment: The Shrimp-Turtle and
EC-Hormone Cases, Economic and Political Weekly 17521762 (May 13, 2000), WTO and Environment:
Legitimization of Unilateral Trade Sanctions, Economic and Political Weekly 133140 (January 1218,
2002).
28 See G. Teeple, Globalization as the Triumph of Capitalism: Private property, Economic Justice and
the New World Order, in T. Schrecker (Ed.), Surviving Globalism: The Social and Environmental Challenges 1538, at 15 (1997).
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Third, at the level of circulation of commodities, international law defines the conditions in which international exchange is to take place. It is a truism that markets cannot exist without norms or rules of some sort, and the ordering of market transactions
takes place through layers of rules, formal and informal.29 In this regard, international
law inter alia lays down rules with regard to the sales of goods, market access, government procurement, subsidies and dumping. Many of these rules are designed to
protect the corporate actor in the first world from efficient production abroad even as
third world markets are being pried open for its benefit. Thus, the rules of market access
are now sought to be linked to the regulation of process and production methods in
order to allow first world States to construct non tariff barriers against commodities
exported from the third world.30 Likewise, the rules on anti-dumping are designed to
protect inefficient corporations in the developed home State.31 On the other hand, some
forms of market intervention are frowned upon. Thus, international commodity agreements which seek to stabilise the incomes of third world countries from primary commodity exports are actively discouraged.32
Fourth, international law increasingly requires the deterritorialization of currencies
subjecting the idea of a national currency to growing pressure. The advantages of
monetary sovereignty are known. It is, among other things, a possible instrument to
manage macroeconomic performance of the economy; and [. . .] a practical means to
insulate the nation from foreign influence or constraint.33 The first world is today using
international financial institutions, and the ongoing negotiations relating to the General
Agreement on Trade in Services (GATS), to compel third world States to accept monetary arrangements, such as capital account convertibility, which are not necessarily
in their interests.34 Thus, it will not be long before capital account convertibility
becomes the norm, despite its negative consequences for third world economies.35 The
loss of monetary sovereignty, as the East Asian crisis showed, has serious fallouts for
the ordinary people of the third world. Their standards of living can substantially erode
overnight.
29 See D. Campbell and S. Picciotto, Exploring the Interaction Between Law and Economics: the Limits
of Formalism, 18 Legal Studies 249278, at 265 (1998).
30 See B.S. Chimni, (2000) and (2002), supra note 27.
31 See B.M. Hoekman and M. Kostecki, The Political Economy of the World Trading System: from GATT
to WTO 174 (1995).
32 See B.S. Chimni, International Commodity Agreements: A Legal Study (1987), Marxism and
International Law: A Contemporary Analysis, Economic and Political Weekly 337349, at 341 (February
6, 1999).
33 See B. Cohen, Money in a Globalized World, in N. Woods (Ed.), The Political Economy of
Globalization 77, at 84 (2000).
34 See C. Raghavan, GATS may result in Irreversible Capital Account Liberalization (2002), online
<http://www.twnside.org.sg/>: that monetary relations can be used coercively like all other economic
instruments should come as no surprise. According to Kirshner: monetary power is remarkably efficient
component of state power . . . the most potent instrument of economic coercion available to states in a position to exercise it (cited by Cohen, supra note 33, at 87). It is the coercive element that concerns third world
states and distinguishes their situation from the relinquishment of monetary sovereignty by States of the
European Union (EU). For the text of GATS see WTO 1994: 325.
35 See Bagwati, supra note 25, at 712.
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Fifth, the internationalisation of property rights has been accompanied by the

internationalisation of the discourse of human rights. Human rights talk has come to
have a pervasive presence in international relations and law. This development has
been variously expressed: a new ideal has triumphed on the world stage: human
rights;36 human rights discourse has become globalized;37 human rights could be
seen as one of the most globalized political values of our time.38 The fact that the
omnipresence of the discourse of human rights in international law has coincided with
increasing pressure on third world States to implement neo-liberal policies is no accident; the right to private property, and all that goes along with it, is central to the discourse of human rights.39 While the language of human rights can be effectively
deployed to denounce and struggle against the predator and the national security
state, its promise of emancipation is constrained by the very factor that facilitates its
pervasive presence viz., the internationalisation of property rights. This contradiction
is in turn the ground on which intrusive intervention into third world sovereign spaces
is justified. For the implementation of neo-liberal policies is at least one significant
cause of growing internal conflicts in the third world.40
Sixth, labor market deregulation prescribed by international financial institutions
and international monetary law has caused the deterioration of the living conditions of
third world labor. Deregulation policies are an integral part of structural adjustment
programs. They are based on the belief that excessive government intervention in
labor markets through such measures as public sector wage and employment policies, minimum wage fixing, employment security rules is a serious impediment to
adjustment and should therefore be removed or relaxed.41 The growing competition
between third world countries to bring in foreign investment has further led to easing
of labor standards and a race to the bottom.42 In the year 2000, nearly 93 developing countries had export processing zones (EPZs), compared with 24 in 1976.43
Women provide up to 80 per cent of labor requirements in EPZs and are the subject of
economic and sexual exploitation.44 The United Nations Secretary-General himself
36 See C. Douzinas, The End of Human Rights: Critical Legal Thought At the Turn of the Century 1
(2000).
37 See G. Teubner, The Kings Many Bodies: The Self-Destruction of Laws Hierarchy, 31 Law and Society
Review 763, at 770 (1997).
38 See R.A. Wilson, Introduction in R.A. Wilson (Ed.), Human Rights, Culture and Context: Anthropological Perspectives 1 (1997).
39 See B.S. Chimni, International Law and World Order: A Critique of Contemporary Approaches 291
(1993).
40 See A. Orford, Locating the International: Military and Monetary Interventions after the Cold War,
38 Harvard International Law Journal 443 485 (1997). See also OAU Report of the International Panel of
Eminent Personalities asked to Investigate the 1994 Genocide in Rwanda and the Surrounding Events
(2000), online: <http://www.oau-oua.org/Document/ipep/ipep.htm>.
41 L.L. Lim, More and Better Jobs for Women: An Action Guide, Geneva: ILO 1920.
42 See J. Oloka-Onyango and D. Udigama, The Realization of Economic, Social and Cultural Rights:
Globalization and its Impact on the Full Enjoyment of Human Rights Rights, E/CN.4/Sub.2/2000/13,
15 June 2000, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-Second session,
para 34.
43 Id., para 35.
44 Id., para 35.
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has pointed to adverse labor conditions as a major factor contributing to the increased
feminization of poverty.45 The position of migrant labor in the first world is not very
different from that of working classes in deregulated labor markets of the third world.
There are increasing restrictions on their rights within European Union and the United
States.46
Seventh, the concept of jurisdiction is being rendered more complex than ever in the
past. Among other things, digital capitalism threatens to make a hash of geopolitical
boundaries and reduce the ability of third world States to regulate transnational commerce.47 There is, in the era of globalization, an intersection of jurisdictions which
gives rise to multiple (or concurrent) and extra-territorial jurisdiction to a far greater
extent than before. Where international law does not penetrate national spaces,
powerful states put into effect laws that have an extraterritorial effect; third world
States have little control over processes initiated without its consent in distant spaces.48
There is, therefore, a legitimate fear among third world States of a tyranny of sameness or the extension transnationally of the logic of Western governmentality49 The
fear is accentuated by the fact that international laws are being increasingly understood
in ways that redefine the concept of jurisdiction. Thus, for example, international
human rights law is being interpreted to delimit sovereign jurisdiction in diverse manner, as is reflected in developments ranging from the Pinochet case to armed humanitarian interventions.50 While these developments have a progressive dimension they
can easily be abused to threaten third world leaders and peoples unless they are willing to accept the dictates of the first world.
Eighth, there has been a proliferation of international tribunals that subordinate the
role of national legal systems in resolving disputes. These range from international
criminal courts to international commercial arbitration to the WTO dispute settlement
system (DSS). It is not the greater internationalisation of interpretation and enforcement of rules that is problematic but its differential meaning for, and impact on, third
world States and peoples. The neglect of the views and legal systems of societies visited by internal conflict in the setting up of ad hoc international criminal tribunals, even
as the United States refuses to ratify the Rome Statute, is an instance of such practices.51
Take also the differential impact of the WTO DSS. It was accepted in the belief that a
rule oriented and compulsory DSS would protect the interests of third world countries.
This expectation has been belied because, among other things, the substantive rules
themselves are biased in favour of the first world, and have therefore not yielded the
Id., para 39.

Id., para 28.
47 See D. Schiller, Digital Capitalism: Networking the Global Market System 72 (1999).
48 See M. Shaw, International Law, 3 ed. (1997) and B. Chimni, (2002), supra note 27.
49 See J. Weiner, Globalisation and the Harmonisation of Law 195 and 188 (1999).
50 See B.S. Chimni, The International Law of Humanitarian 103 Intervention, in State Sovereignty in the
21st Century 103132 (2001, New Delhi: Institute for Defense Studies and Analyses).
51 See B. Rajagopal, The Pragmatics of Prosecuting the Khmer Rouge, Yearbook of International
Humanitarian Law, Vol. 1, 189204 (1998) and From Resistance to Renewal: The Third World, Social
Movements, and the Expansion of International Institutions, 41 Harvard International Law Journal 531578
(2000).
45
46
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expected gains in terms of market access.52 Second, the third world countries lack the
expertise and the financial resources to make effective use of the DSS. Third, the WTO
Appellate Body has interpreted the texts in a manner as to upset the balance of rights
and obligations agreed to by third world States. For example, the subject of tradeenvironment interface has received an interpretation that was never envisaged by third
world States. With the result that their exports are threatened by unilateral trade measures taken by first world States.53
Ninth, the State is no longer the exclusive participant in the international legal
process even though it remains the principal actor in law making. The globalisation
process is breaking the historical unity of law and State and creating a multitude of
decentered law-making processes in various sectors of civil society, independently of
nation-states.54 While this is not entirely an unwelcome development, the paradigmatic case of global law without the state is lex mercatoria, revealing that the
transnational corporate actor is the principal moving force in decentralised law making.55 The practices of lex mercatoria include standard form contracts, customs of trade,
voluntary codes of conduct, private institutions formulating legal rules for adoption,
intra firm contracts and the like.56 Some of these practices do not raise concerns for
third world countries. Others however deserve our attention for several reasons. First,
there is the lack of a public voice in the emergence of corporate law without a State.
Second, corporations take advantage of their inner legality to avoid tax and other
liabilities. Thus, for example, intra-firm transactions are used to avoid paying taxes and
respecting foreign exchange laws of many a third world country. Third, the internal
legal order may be used to, among other things, present a picture of law and human
rights observance when the contrary is true. Such is, for example, the case with voluntary codes of conducts that are adopted by transnational corporations.57
52 See UN A/CONF. 198/3, 1 March 2002: Monterrey Consensus on Financing for Development, paras
2638 UNGA (2001) A/CONF. 191/12, 2 July 200: Brussels Declaration on Least Developed Countries
para 6.
53 See B.S. Chimni, supra note 27. On problems relating to international commercial arbitration see
M. Sornarajah, The Climate of International Arbitration, 8:2 Journal of International Arbitration 4786,
at 79 (1991) and Power and Justice in Foreign Investment Arbitration, 14 Journal of International Arbitration 103140, at 103 (1997).
54 See Teunber supra note 37, at xiii.
55 Id., at 3 and 8.
56 In response to criticism that lex mercatoria is still dependent on the sanctions of national courts,
Teubner writes that it is the phenomenological world construction within a discourse that determine the
globality of the discourse, and not the fact that the source of use of force is local. See Teubner, supra note 37,
at 13.
57 Global laws without the State are, more generally, sites of conflict and contestation, involving the renegotiation and redefinition of the boundaries between, and indeed the nature and forms, of the state, the market, and the firm. See S. Picciotto and J. Haines, Regulating Global Financial Markets, 26:3 Journal of Law
and Society 351368, at 360 (1999). Thus, for example the work of the Basle Committee has been crucial
in regulating the liquidity and solvency of banks in individual jurisdictions in the United States and the
European Union; see J. Wiener, Globalisation and the Harmonisation of Law, Chapter 3 (1999). The work
of the Committee led to legislation (the Foreign Bank Supervision Enhancement Act of 1991) being enacted
by the US to incorporate the guidelines suggested by it and which may lead to the exclusion of third world
banks from operating there.
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Tenth, there is the refusal to affirmatively differentiate between States at different

stages of the development process. International law today articulates rules that seek
to transcend the phenomena of uneven global development and evolve uniform global
standards to facilitate the mobility and operation of transnational capital. There is no
longer space for recognizing the concerns of States and peoples subjected to long colonial rule. Poor and rich states are to be treated alike in the new century and the principle of special and differential treatment is to be slowly but surely discarded. Equality
rather than difference is the prescribed norm. The prescription of uniform global standards in areas like intellectual property rights has meant that the third world State has
lost the authority to devise technology and health policies suited to its existential conditions. But since capital now resides everywhere, it abhors difference, and globalised
international plays along.58
Eleventh, the relationship between the State and the United Nations is being reconstituted. There is the trend to turn to the transnational corporate actor for financing the
organization. The corporate actor also has come to play a greater role within different
UN bodies.59 Its growing influence and linkages is being used by the corporate actor
to legitimize its less than wholesome activities. As Onyango and Udigama warn, a
danger exists of such linkages being exploited by the latter, while only paying lipservice to the ideals and principles for which the United Nations was created and to
which it continues to be devoted. Moreover, because the actors who are being linked
up with have considerably more financial and political clout, there is a danger that the
United Nations will come out the loser.60 What may be called the privatization of the
United Nations system reduces, among other things, the possibility of the organization
being at the center of collective action by third world countries.
In sum, the meaning of the reconstitution of the relationship between State and international law is the creation of fertile conditions for the global operation of capital and
the promotion, extension and protection of internationalised property rights. There has
emerged a transnational ruling elite, with the ruling elite of the third world playing a
junior role, which guides this process. It is seeking to create a global system of governance suited to the needs of transnational capital but to the disadvantage of third
world peoples. The entire ongoing process of redefinition of State sovereignty is
being justified through the ideological apparatuses of Northern States and international
institutions it controls. Even the language of human rights has been mobilised towards
this end. If this trend has to be reversed in terms of equity and justice, the battle for the
minds of the third world decision-makers and peoples has to be won. In brief, the
58 The meaning of the Doha Declaration on the TRIPS Agreement and Public Health adopted on
14 November, 2001 is far from clear. See WTO, WT/MIN (01)/DEC/W/2, 14 November 2001 Ministerial
Conference, Fourth Session, Doha, 914 November 2001: Declaration on the TRIPS Agreement and Public
Health (2001). Albeit, there is clear recognition that the TRIPS Agreement ignores its impact on public
health.
59 See B.S. Chimni, Marxism and International Law: A Contemporary Analysis, Economic and Political
Weekly 337349 (February 6, 1999).
60 See J. Oloka-Onyango and D. Udigama, The Realization of Economic, Social and Cultural Rights:
Globalization and its Impact on the Full Enjoyment of Human Rights Rights E/CN.4/Sub.2/2000/13, 15 June
2000, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-Second session (1999).
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changing constellation of power, knowledge and international law needs to be urgently

grasped if the third world peoples have to resist recolonisation.
4. Ideology, Force, and International Law

There is the old idea, which has withstood the passage of time, that dominant social
forces in society maintain their domination not through the use of force but through
having their worldview accepted as natural by those over whom domination is exercised. Force is only used when absolutely necessary, either to subdue a challenge or
to demoralize those social forces aspiring to question the natural order of things. The
language of law has always played, in this scheme of things, a significant role in legitimizing dominant ideas for its discourse tends to be associated with rationality, neutrality, objectivity and justice. International law is no exception to this rule. It
legitimizes and translates a certain set of dominant ideas into rules and thus places
meaning in the service of power. International law, in other words, represents a culture
that constitutes the matrix in which global problems are approached, analyzed and
resolved. This culture is shaped and framed by the dominant ideas of the time. Today,
these ideas include a particular understanding of the idea of global governance and
accompanying conceptions of state, development (or non-development) and rights.
The process through which the culture of international law is shaped is a multifarious one. Academic institutions of the North, with their prestige and power, play a key
role in it. These institutions, in association with State agencies, greatly influence the
global agenda of research.61 Third world students of international law tend to take their
cue from books and journals published in the North. From reading these they make up
their minds as to what is worth doing and what is not? Who are good scholars and who
are bad, or, which is the same, what are the standards by which scholarship is to be
assessed? It is therefore important that third world international lawyers refuse to
unquestioningly reproduce scholarship that is suspect from the standpoint of the interests of third world peoples. Progressive scholars in particular need to be careful. For,
cultural imperialism (American or otherwise) never imposes itself better than when
it is served by progressive intellectuals (or by intellectuals of color in the case of racial
inequality) who would appear to be above suspicion of promoting the hegemonic interests of a country [and one may add system] against which they wield the weapons of
social criticism.62
International institutions also play an important role in sustaining a particular culture of international law. These institutions ideologically legitimate the norms of the
61 Thus, it is well pointed out, the ideas about international law popular at a given moment in some countries are more influential than those popular in others simply because some countries are more powerful;
money, access to institutional resources, relationships to underlying patterns of hegemony, and influence
is central to the chance that a given idea will become influential or dominant within the international
law profession. See D. Kennedy, What is New Thinking in International Law?, ASIL Proceedings of the
94th Annual Meeting, 104 125, at 121 (April 56, 2000).
62 See P. Bourdieu and L. Wacquant, On the Cunning of Imperial Reason, 16 Theory, Culture & Society
4158, at 51 (1999).
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world order, co-opt the elite from peripheral countries, and absorb counter-hegemonic
ideas.63 International institutions also actively frame issues for collective debate in
manner which brings the normative framework into alignment with the interests of
dominant States. This is also done through the exercise of authority to evaluate the policies of member States.64 The knowledge production and dissemination functions of
international institutions are, in other words, steered by the dominant coalition of social
forces and States to legitimize their vision of world order. Only an oppositional coalition can evolve counter-discourses which deconstruct and challenge the hegemonic
vision. The alternative vision needs to respond to the individual elements that constitute hegemonic discourse.
4.1. The Idea of Good Governance
Today, globalising international law, overlooking its history, and abandoning the
principle of differential treatment, legitimizes itself through the language of blame. The
North seeks to occupy the moral high ground through representing the third world
peoples, in particular African peoples, as incapable of governing themselves and
thereby hoping to rehabilitate the idea of imperialism.65 The inability to govern is projected as the root cause of frequent internal conflicts and the accompanying violation
of human rights necessitating humanitarian assistance and intervention by the North.
It is therefore worth reminding ourselves that colonialism was justified on the basis of
humanitarian arguments (the civilizing mission). It is no different today.66 The contemporary discourse on humanitarianism not only seeks to retrospectively justify
colonialism but also to legitimize increasing intrusiveness of the present era.67 Indeed,
as we have observed elsewhere, humanitarianism is the ideology of hegemonic states
in the era of globalization marked by the end of the Cold War and a growing NorthSouth divide.68 Overlooked in the process is the role played by international economic
and political structures and institutions in perpetuating the dependency of third world
peoples and in generating conflict within them.
4.2. Human Rights as Panacea
The idea of humanitarianism is framed by the discourse of human rights. Its globalization is a function of the belief that the realm of rights, albeit a particular vision of
63 See R.W. Cox, Gramsci, Hegemony and International Relations: An Essay in Method, in S. Gill (Ed.),
Gramsci, Historical Materialism and International Relations 4966 (1993).
64 See B.S. Chimni, Marxism and International Law: A Contemporary Analysis, Economic and Political
Weekly 337349 (February 6, 1999).
65 See F. Furedi, The Moral Condemnation of the South, in C. Thomas and P. Wilkins (Eds.), Globalization
and the South 7689, at 79 (1997).
66 See A. Anghie, Universality and the Concept of Governance in International Law, in E.K.Quashigah
and O.C.Okafor (Eds.), Legitimate Governance in Africa 21 40, at 25 (1999) and J. Gathii, Good
Governance as a Counter-Insurgency Agenda to Oppositional and Transformative Social Projects in
International Law, 5 Buffalo Human Rights Law Review 107177, at 107 (1999).
67 Id., at 78.
68 See B.S. Chimni (2000), supra note 27, at 244.
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rights, offer a cure for nearly all ills which afflict third world countries and explains
the recommendation of the mantra of human rights to post-conflict societies.69 Few
would deny that the globalization of human rights does offer an important basis for
advancing the cause of the poor and the marginal in third world countries. Even the
focus on civil and political rights is helpful in the struggle against the harmful policies
of the State and international institutions. There is a certain dialectic between civil and
political rights and democratic practice that can be denied at our own peril. But it is
equally true that the focus allows the pursuit of the neo-liberal agenda by privileging
private rights over social and economic rights. Thus, for example, the preamble to the
TRIPs text baldly states that intellectual property rights are private rights. It does not,
on the other hand, talk of the right to health of individuals or peoples;70 indeed, the
Doha declaration on the TRIPs agreement and public health had to be insisted upon for
this very reason.71 The argument here is not rooted in an excessively narrow, proprietary conception of rights,72 but rather on the continuos failure to realize welfare
rights. It is this failure that gives rise to the belief that the language of civil and political rights mystifies power relations and entrenches private rights. This belief is
strengthened by the fact that official international human rights discourse eschews
any discussion of the accountability of international institutions such as the IMF/
World Bank combine or the WTO which promote policies with grave implications for
both the civil and political rights as well as the social and economic rights of the poor.
Finally, there are the wages of taking civil and political rights too seriously. There is
the violence that underpins the desire of rights, of realizing rights at any cost.73 Wars
and interventions are unleashed in its name.
4.3. Salvation Through Internationalisation of Property Rights
In recent years, a particular form of State (the neo-liberal State) has come to be touted
as its only sensible and rational form. It has been the ground for justifying the erosion
of sovereignty though relocating it in international institutions. What this has permitted is the privatization and internationalization of collective national property. In
order to understand the on going process, the State needs to be understood in two different ways. First, states are clearly institutions of territorial property.74 As Hont
explains, holding territory is a question of property rights, and states, including
69 See B. Chimni, Post-conflict Peace Building and the Repatriation and Return of Refugees: Concepts,
Practices and Institutions (forthcoming in 2002).
70 Even when the question of health is mentioned, as in article 8 of the TRIPs text, it is subject to the rights
of the patent holders.
71 For the text of the declaration see WTO, WT/ MIN (01)/DEC/W/2, 14 November 2001 Ministerial
Conference, Fourth Session, Doha, 914 November 2001: Declaration on the TRIPS Agreement and Public
Health. (2001).
72 See K. Baynes, Rights as Critique and the Critique of Rights: Karl Marx, Wendy Brown, and the Social
Function of Rights, 28 Political Theory 451468 (2000).
73 See C. Douzinas, The End of Human Rights: Critical Legal Thought At the Turn of the Century 315
(2000).
74 See I. Hont, The Permanent Crisis of a Divided Mankind: Contemporary Crisis of the Nation State
in Historical Perspective, in J. Dunn (Ed.), Contemporary Crisis of the Nation State? 166231 (1995).
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nation-states, are owners of collective property in land . . .75 It explains why third
world diplomacy has, through various resolutions relating to natural resources,
emphasized the function of sovereignty as a demarcation of property rights within
international society.76 This has begun to change under the ideological onslaught
which declares that the internationalization of property rights is the surest way to bring
welfare to third world peoples. The idea of sustainable development has also been
deployed towards this end. Second, the State is to be understood as a social form, a
form of social relations.77 It allows the debunking of the concept of national interest and the insight that the third world ruling elite is actively collaborating with its first
world counterparts in entrenching the process of privatization and internationalization
of property rights in its own interest. This process is legitimised through the ideological discrediting of all other forms of State. Such thinking needs to be contested in a
bid to safeguard the wealth of third world peoples. The permanent sovereignty over
natural resources must vest in the people.
4.4. The Idea of Non-development
In recent years it has been argued that development itself is the trojan horse and that
the ideology it embodies is responsible for third world peoples and States being willingly drawn into the imperial embrace.78 It is suggested that the post-colonial imaginary has been colonised allowing the major organising principle of Western culture,
that is the idea of infinite development as possibility, value and cultural goal to be
implanted in the poor world.79 If only the third world countries were to choose nondevelopment (of whatever local variety), its people would be spared much of the misery that they have suffered in the post-colonial era. The general idea here is to displace
the aspirations of third world peoples and scale down development to more tolerable
levels. This would help avoid the burden of sustainable development from falling on
the North and help sustain its high consumption patterns.
To be sure, the post colonial era has witnessed the massive violation of human rights
of ordinary peoples in the name of development. But it is particular kind of development policies that are responsible for these violations and not development per se. It
is development through structural adjustment programs or neo-liberal policies that
need to be indicted, rather than the aspirations of the people to be able to exercise
greater choices and a higher standard of life. The uncritical celebration of all that is
non-modern is merely a way of obstructing the development of third world countries.
Id., at 173.
See D.L. Blaney and N. Inayatullah, The Third World and a Problem with Borders, in Mark
E. Denham and Mark Owen Lombardi (Eds.), Perspectives on Third World Sovereignty: The Postmodern
Paradox 83102, at 91 (1996), and N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and
Duties (1997).
77 J. Holloway, Global Capital and the National State, in Werner Bonefeld and J. Holloway, (Eds.), Global
Capital, National State and the Politics of Money 116 141 (1995) and R. Palan, J. Abbott, and P. Deans,
State Strategies in the Global Political Economy 43 (1999).
78 See A. Escobar, Anthropology and Development, 154 International Social Science Journal 497515,
at 497 (1997).
79 See J. Tomlinson, Cultural Imperialism: A Critical Introduction 156 and 163 (1991).
75
76
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Such celebration also risks romanticising oppressive traditional structures in the third
world. It is somehow to be the fate of the poor, the marginal, and the indigenous or
tribal peoples to preserve traditional values from destruction, while the elite enjoys the
fruits of development, often in the first world. What is perhaps called for is a critical
approach that recognises the discontents spawned by modernity without overlooking
its attractions over pre-capitalist societies.80
4.5. The Use of Force
Powerful States, it is being argued, exercise dominance in the international system
through the world of ideas and not through the use of force. But from time to time force
is used both to manifest their overwhelming military superiority and to quell the
possibility of any challenge being mounted to their vision of world order. On such
occasions, dominant States do not appear to be constrained by international law
norms, be it with regard to the use of force or the minimum respect for international
humanitarian laws. The US intervention in Nicaragua and the Gulf War and the NATO
intervention in Kosovo are just a few examples of this truth. Thus, peace in the contemporary world is in many ways the function of dominance.
5. The Story of Resistance and International Law

The critique of dominant ideology is necessary if the interests of third world peoples
is to be safeguarded. But it has to go hand in hand with a theory of resistance. The critique has to be integrally linked to the struggles of people against unjust and oppressive international laws. Among other things, it has to be recorded and brought to bear
upon the international legal process. A proposed theory of resistance has to avoid the
pitfalls of liberal optimism on the one hand, and left wing pessimism on the other. The
first view believes that the world is progressively moving towards a just world order.
It believes that more law and institutions are steps in this direction, in particular imaginative ways of securing enforcement of agreed norms and principles. The second view
completely rejects this narrative of progress. It only sees the endlessly repeated play
of dominations.81 In this view humanity installs each of its violences in a system of
rules and thus proceeds from domination to domination.82 This understanding is tied
to radical rule scepticism: Rules are empty in themselves, violent and unfinalized; they
are impersonal and can be bent to any purpose.83 This pessimistic understanding is
(couched in the vocabulary of political realism) also shared by the back to the future
themes that have emerged in the post cold war era.84 There is room here for a third view
Id., at 144.
See M. Foucault, Nietzsche, Genealogy, History, in Paul Rabinow (Ed.), The Foucault Reader 76100,
at 85 (1984).
82 Id., at 86.
83 Id.
84 See J. George, Back to the Future?, in Greg Fry and Jacinta OHagan (Eds.), Contending Images of
World Politics 3348 (2000).
80
81
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that hopes to occupy the vast intermediate space between liberal optimism and left
wing pessimism. This view does not subscribe either to the facile view that humankind
is inevitably and inexorably moving towards a just world order or the idea that resistance to domination is an empty historical act.
A key issue from the perspective of a theory of resistance is the question of agency.
More specifically, it is about the role of old social movements (OSMs) in ushering in
a just world order. Increasingly today, the story of resistance is coming to be identified
with new social movements (NSMs) in the third world.85 The NSMs arrived on the
scene in the North in the 1970s with a focus on individual issue areas: womens
movement, ecology movements, peace movement, gay and lesbian movements etc.86
They began to make their presence felt in the South a decade later. The collapse of
actually existing socialism and the subsequent marginalization of class based movements led to a marked presence of NSMs. The rapid growth of non-governmental
organisations (NGOs) with their ability to reach out through using modern means of
communication contributed greatly to this presence. The NSMs, generally speaking,
tend to view with suspicion OSMs with their accent on class based struggles.
The OSMs emerged in the nineteenth century when the working class became
sufficiently organised to harbour the ambitions of capturing state power. The key date
perhaps is 1848 as the revolution in France marked the first time that a proletarianbased political group made a serious attempt to achieve political power and legitimise
workers power (legalisation of trade unions, control of the workplace.87 The globalisation process with the increased mobility of capital and the intensification of both
inter-state and intra-state international trade has meant huge movements into the
global labour force.88 According to Harvey, the global proletariat is far larger than ever
and the imperative for workers of the world to unite is greater than ever.89 There is the
growing numbers of unemployed in the North that has been witnessing jobless growth.
Of course, . . . the bulk of the Reserve Army of capital is located geographically in the
peripheries of the system.90 It is made up of the enormous mass of urban unemployed
and semi-employed, as also the large mass of rural unemployed.91 In other words, never
before has the slogan of workers of the world unite has meant so much to so many.
It is however not entirely surprising that class-based struggles are coming to be
neglected by NSMs as the OSMs have failed to reach out to them. The privileging of
85 See B. Rajagopal, From Resistance to Renewal: The Third World, Social Movements, and the
Expansion of International Institutions, 41 Harvard International Law Journal 531578 (2000).
86 See I. Wallerstein, Antisystemic Movements: History and Dilemmas, in S. Amin, et al. (Eds.),
G. Transforming the Revolution: Social Movements and the World-System 1354, at 41 (1990).
87 Id., at 16.
88 See D. Harvey, Spaces of Hope 42 (2000). And China is not alone in this. The export-oriented garment
industry of Bangladesh hardly existed twenty years ago, but it now employs more than a million workers
(80 per cent of them women and half of them crowded into Dhaka). Cities like Jakarta, Bangkok, and
Bombay, as Seabrook (1996) reports, have become Meccas for formation of a transnational working class
heavily dependent upon women living under conditions of poverty, violence, chronic environmental degradation, and fierce repression. See Harvey at 42.
89 Id., at 45.
90 See Amin, supra note 15, at 99.
91 Id.
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non-class struggles is also encouraged by the transnational ruling elite for it prevents
effective opposition to its neo-liberal policies. After all, global strategies and concentrated power cannot be fought by decentralised means and forms of resistance. In the
circumstances, what we need to do is to preserve what has been gained from struggles of the 18501950 period (both the concrete institutions and the intellectual understanding) and add to it a strong dash of daring new approaches derived from the
post-1945 experience.92 It calls for a dialogue between new and old social movements
for, as Wallerstein notes, all existing movements are in some ghetto.93 What is
required is a conscious effort at empathetic understanding of the other movements,
their histories, their priorities, their social bases, their current concerns.94 Their need
to be strategic alliances not only in the short but also in the medium term.
Of course, there is also the necessity to think about long term goals. On our part, we
would like to revisit the idea of socialism. Socialism should not be seen as a fixed ideal
or a frozen concept. It should today be perceived as expressing the aspirations of equality and justice of subaltern peoples. The ideal is to be realised through non-violent
means and should exclude all manner of dogmatic thinking and undemocratic practices. The ideal of democratic socialism would be actualised by way of reform and not
revolution and would not exclude reliance on market institutions. It would be realised
through the collective struggles of different oppressed and marginal groups. The identity and role of these groups, as we have noted above, is not fixed in history. New identities of oppression emerge and vie for space with other groups. If this understanding
is accepted then we need an international political movement capable of bringing
together in an appropriate way the multitudinous discontents that derive from the naked
exercise of bourgeois power in pursuit of a utopian neoliberalism.95 This calls for the
creation of organisations, institutions, doctrines, programs, formalised structures, and
the like, that work to some common purpose.96 There is, in other words, a need to build
a movement that cuts across space and time, involving NSMs and OSMs in every
struggle, to form a global opposition force that can challenge those transnational
social forces which bolster the regime of capital at the expense of peoples interests.
Today, from Seattle to Genoa we are witnessing an upsurge of sentiment against the
neo-liberal form of globalisation. New forms of struggle have been invented to
mobilise people against the injustices of globalisation. There has been adroit and imaginative use of digital space to create a global public sphere in which the evolving international civil society can register its protest. While the sentiments that are expressed
have no unified outlook, and are in fact riddled with contradictions, the significance
of the protest cannot be disregarded. If these protests can draw in the OSMs, and the
latter respond to it and present a united front, there would be much to cheer about.
Albeit, in terms of framing a theory of resistance we need to distinguish between those
demands that are not so good for third world countries and those that are. Thus, for
92
93
94
95
96
See Wallestein, supra note 86.

Id., at 53.
Id., at 52.
See Harvey, supra note 88, at 49.
Id.
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example, the demand for bringing in labour standards into WTO is inimical to the
interests of third world countries as it would be used as a device of protection by the
North.97
From the standpoint of TWAIL, it is necessary first, to make the story of resistance
an integral part of the narration of international law. There is perhaps a need to experiment with literary and art forms (plays, exhibitions, novels, films) to capture the imagination of those who have just entered the world of international law. Second, we need
to strike alliances with other critics of the neo-liberal approach to international law.
Thus, for instance, both feminist and third world scholarship address the question of
exclusion by international law. There is therefore a possibility of developing coherent
and comprehensive alternatives to mainstream Northern scholarship. In other words,
we should collaborate with feminist approaches to reconstruct international law to
address the concerns of women and other marginal and oppressed groups. Third, we
need to study and suggest concrete changes in existing international legal regimes. The
articulation of demands would assist the OSMs and NSMs to frame their concerns in
a manner as to not do harm to third world peoples.
6. The Road Ahead: Further thoughts on a TWAIL Research Agenda

Identifying the future tasks of TWAIL is severely constrained by the protocols of what
are acceptable goals and what is deemed good academic work. It compels the academia to playing a self-fulfilling role as the protocols, in a manner of speaking, shame
individual academics into imagining only certain kind of social arrangements. For
those who accept the protocols are held up as models of clear thinking. On the other
hand, a variety of social and peer pressures are brought to bear on dissenting academics to neutralize their critical energies. Even eminent personalities are unable to be bold
and courageous in evaluating contemporary trends and imagining alternative futures.
Thus, for instance, Falk writes of the report Our Global Neighborhood produced by
the Commission of Global Governance: Its most serious deficiency was a failure of
nerve when it came to addressing the adverse consequences of globalization, a focus
that would have put such a commission on a collision course with adherents of the neoliberal economistic world picture.98 In contrast, we would urge critical third world
scholars to willingly court irresponsibility if that is what it takes to boldly critique
the present globalization process and project just alternative futures. The commitment
to ushering in a just world order has of course to be translated into a concrete research
agenda in the world of international law. In addition to the ideological and substantive
tasks already identified, we list below some subjects that deserve the attention of third
world scholars.
97 See S. Gopal, American Anti-Globalization Movement, Economic and Political Weekly, (August 25,
2001) page 32263233.
98 See R. Falk, Global Civil Society and the Democratic Prospect, in B. Holden (Ed.), Global Democracy:
Key Debates 62179, at 170 (2000).
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6.1. Increasing Transparency and Accountability of International Institutions

International law, we have argued, does not today promote democracy either within
States or in the transnational arena. Those who seek to contest the present state of the
relationship between State and international law need to identify the constraints
imposed on realizing democracy in the internal and transnational arenas and push forward the global democracy agenda. The steps leading to global democracy will not
conform to a neat model. Instead, it will be the result of slowly increasing the transparency and accountability of key actors like States, international institutions and
transnational corporations. There is much work that needs to be done in this respect.
Thus, for example, a correlative of international institutions possessing legal personality and rights is responsibility. It is a general principle of international law concerned with the incidence and consequences of illegal acts, in particular the payment
of compensation for loss caused.99 There is a need to elaborate this understanding and
develop the law (either in the form of a declaration or convention) on the subject of
responsibility of international institutions. This would allow powerful institutions
such as the IMF, World Bank and WTO to be made accountable, among others, to the
global poor.100 Towards this end, there is also an urgent need to democratize decisionmaking within international institutions such as the IMF and the World Bank for they
have come to exercise unprecedented influence on the lives of ordinary people in the
third world.101 This calls for solutions that temper the desire for change with a strong
dose of realism.
6.2. Increasing Accountability of Transnational Corporations
There are several steps that can be taken to make the transnational corporations
(TNCs) responsible in international law. The steps could include: (i) adoption of the
draft United Nations code of conduct on TNCs; (ii) the assertion of consumer sovereignty manifesting itself in the boycott of goods of those TNCs that do not abide by
minimum human rights standards; (iii) monitoring of voluntary codes of conduct
adopted by TNCs in the hope of improving their public image; (iv) the use of shareholders rights to draw attention to the needs of equity and justice in TNC operations;
(v) the imaginative use of domestic legal systems to expose the oppressive practices
of TNCs; and (vi) critique of bodies like the International Chambers of Commerce for
See I. Brownlie, Principles of Public International Law, 4th ed., 701 and 433 (1990).
See A. Anghie, Time Present and Time Past: Globalization, International Financial Institutions and
the Third World, 32:2 New York University Journal of International Law and Politics 243290 (2000).
101 To take the case of the IMF, the decision making process in it is based on a system of weighted
voting which excludes its principal users, the poor world, from a say in the policy making. The Third World
voice is not heard even as the policies of the Fund inflict enormous pain and death on the people who inhabit
it. Nearly 4.4 billion people or 78 per cent of the worlds 1990 population live in the Third World. Despite
constituting an overwhelming majority of the membership the Third World countries as a whole had a
voting share of approximately 34 per cent in the IMF in the mid-nineties. See R. Gerster, Proposals for Voting
Reform within the International Monetary Fund, Journal of World Trade 121133 (1993). Without the OPEC
countries (who act as creditor states in the institution) this share is reduced to 24 per cent.
99
100
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B.S. CHIMNI
pursuing the interests of TNCs to the neglect of the concerns of ordinary citizens.102 All
these measures call for the critical intervention of international law scholarship.
6.3. Conceptualizing Permanent Sovereignty as Right of Peoples and not States
Research needs to be directed towards translating the principle of permanent sovereignty over natural resources into a set of legal concepts which embed the interests
of third world peoples, as opposed to its ruling elite. In the past, the Program and
Declaration of action for a New International Economic Order and the Charter of
Economic Rights and Duties of States were statist in their orientation. While it is true
that the State is, in terms of international demarcation of territories, an institution of
collective property, the ultimate control over this property is to vest with people. From
this perspective, there is a need to address the difficult question of how to give legal
content to peoples sovereign rights? There is often in this respect the absence of
appropriate legal categories and are difficult to implement in practice. Thus, for example, Article 8(j) of the Convention on Bio-Diversity calls for empowering local communities.103 Yet it has not easy to implement the provision given the absence of clarity
about the legal definition of local communities.
6.4. Making Effective Use of Language of Rights
There is the need to make effective use of the language of human rights to defend the
interests of the poor and marginal groups. The recent resolutions passed by different
human rights bodies drawing attention to the problematic aspects of international economic regimes offers the potential to win concessions from the State and the corporate sector.104 The implications of these resolutions need to be analysed in depth and
brought to bear on the international and national legal process. A second related task
is to expose the hypocrisy of the first world with respect to the observance of international human rights law and international humanitarian laws.
102 See the Irene Report, Controlling Corporate Wrongs: The Liability of Multinational Corporations:
Legal Possibilites, Strategies and Initiatives for Civil Society, (2000), online: <http://elj.warwick.ac.uk/
global/issue/20001/irene.html> See also J. Madeley, Big Business Poor Peoples: The Impact of Transnational Corporations on the Worlds Poor 169180 (1999).
103 Article 8( j) of the Convention on Biological Diversity, 1982 states:
Each Contracting Party shall, as far as possible and as appropriate:
...
( j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and
sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of
the benefits arising from the utilization of such knowledge, innovations and practices; . . .
For the text of the Convention see N. Arif, International Environmental Law: Basic Documents and Select
References 279 (1996).
104 E/CN.4/Sub.2/2000/7, Commission on Human Rights: Sub-Commission on the Promotion and
Protection of Human Rights The Realization of Economic, Social and Cultural Rights: Intellectual
Property Rights and Human Rights, 17 August, 2000. Para 3 of the resolution reminds all Governments of
the primacy of human rights obligations over economic policies and agreements.
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6.5. Injecting Peoples Interests in Non Territorialised Legal Orders

From the standpoint of the development of international law, the emergence of global
law without the State is both empowering and worrisome. The trend needs to be
analysed from a peoples perspective. The process is empowering in as much as it can
be used by progressive OSMs and NSMs to project an alternative vision of world order
through the production of appropriate international law texts. Much work needs to be
done in this direction. At the same time, there is a need to explore the tension between
the geocentric legality of the nation-state and the new egocentric legality of private
international economic agents in order to ensure that the interest of third world
peoples are not sacrificed.105
6.6. Protect Monetary Sovereignty Through International Law
A great deal of research needs to be directed towards finding ways and means to protecting the monetary sovereignty of third world countries. Third world States are
presently doing so inter alia through the creation of capital controls (e.g., Malaysia
after 1997), tax on financial transactions (Chile), prescription of a fixed period of stay
before departure, a regional monetary fund etc. But there is a need for a new financial
architecture that more readily responds to the anxieties of third world States and peoples. This calls for the informed intervention of international law. But the role of the
international financial market and institutions in eroding the monetary sovereignty of
third world countries is little understood even today. Indeed, few areas cry out for more
attention than international monetary and financial law. This situation needs to be
immediately corrected.
6.7. Ensuring Sustainable Development With Equity
There is an urgent need to shape an integrated response to global environmental problems. In this context, the whole question of constructing an alternative mode of production, exchange, and consumption that is risk reducing and environmentally as well
as socially just and sensitive can be posed.106 From an international law perspective,
the empty concept of sustainable development needs to be filled with legal content that
does not stymie the development of the third world countries.107 At the moment, the
North is exploiting all forums to avoid what Jameson calls the terror of loss.108 It
explains, for example, the approach of the Bush administration to the Kyoto protocol.
In other words, there is a need to ensure that the burden of realising the goal of sustainable development is not shifted to the poor world or used as a tool of protection.
105 See J. Robe, Multinational Enterprises: The Constitution of a Pluralistic Legal Order, in G. Teubner
(Ed.), Global Law Without a State 4579 (1997).
106 See Harvey supra note 88, at 223.
107 See B. Chimni, Permanent Sovereignty over Natural Resources: Toward a Radical Interpretation,
38 Indian Journal of International Law 208217, at 216 (1998).
108 See M. Hardt and K.Weeks, (Ed.), The Jameson Reader 167 (2000).
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6.8. Promoting the Mobility of Human Bodies

While capital and services have become increasingly mobile in the era of globalization, labor has been spatially confined. More significantly, in the realm of forced
(as opposed to voluntary) migration the first world has, through a series of legal
and administrative measures, undermined the institution of asylum established after
the second world war. The post Cold War era has seen a whole host of restrictive practices which prevent refugees fleeing the underdeveloped world from arriving in the
North.109 A sustained critique of these practices is called for. It will, among other things,
prevent the first world from occupying the moral high ground.
7. Conclusion
International law has always served the interests of dominant social forces and States
in international relations. However, domination, history testifies, can coexist with varying degrees of autonomy for dominated States. The colonial period saw the complete
and open negation of the autonomy of the colonized countries. In the era of globalization, the reality of dominance is best conceptualized as a more stealthy, complex and
cumulative process. A growing assemblage of international laws, institutions and
practices coalesce to erode the independence of third world countries in favor of
transnational capital and powerful States. The ruling elite of the third world, on the
other hand, has been unable and/or unwilling to devise, deploy, and sustain effective
political and legal strategies to protect the interests of third world peoples.
Yet, we need to guard against the trap of legal nihilism through indulging in a general and complete condemnation of contemporary international law. Certainly, only a
comprehensive and sustained critique of present-day international law can dispel the
illusion that it is an instrument for establishing a just world order. But it needs to be
recognized that contemporary international law also offers a protective shield, however fragile, to the less powerful States in the international system. Second, a critique
that is not followed by construction amounts to an empty gesture. Imaginative solutions are called for in the world of international law and institutions if the lives of the
poor and marginal groups in the third and first worlds are to be improved. It inter alia
calls for exploiting the contradictions that mark the international legal system. The economic and political interests of the transnational elite are today not directly translatable into international legal rules. There is the need to sustain the illusion of progress
and maintain the inner coherence of the international legal system. Furthermore, individual legal regimes have to offer some concessions to poor and marginal groups in
order to limit resistance to them both in the third world and, in the face of an evolving
global consciousness, in the first world. The contradictions which mark contemporary
international law is perhaps best manifested in the field of international human rights
109 See B. Chimni, The Geopolitics of Refugee Studies: A View from the South, 1:4 Journal of Refugee
Studies 350374 (1998) and First Harrell-Bond Lecture Globalization, Humanitarianism and the Erosion
of Refugee Protection, 13:3 Journal of Refugee Studies 243262 (2000).
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law which even as it legitimizes the internationalization of property rights and hegemonic interventions, codifies a range of civil, political, social, cultural and economic
rights which can be invoked on behalf of the poor and the marginal groups. It holds
out the hope that the international legal process can be used to bring a modicum of
welfare to long suffering peoples of the third and first worlds.

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ICLR 8,1_f3_3-27I

International Community Law Review 8: 327, 2006.

Third World Approaches to International Law: A Manifesto

2. End of the Third World?

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

world is coming to be an integral part of an emerging transnational ruling elite that

3. State and International Law in the Era of Globalization

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

Trade-Related Aspects of Intellectual Property Rights] marks the beginning of the

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

Fifth, the internationalisation of property rights has been accompanied by the

Id., para 39.

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

Tenth, there is the refusal to affirmatively differentiate between States at different

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

changing constellation of power, knowledge and international law needs to be urgently

4. Ideology, Force, and International Law

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

5. The Story of Resistance and International Law

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

See Wallestein, supra note 86.

6. The Road Ahead: Further thoughts on a TWAIL Research Agenda

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

6.1. Increasing Transparency and Accountability of International Institutions

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

6.5. Injecting Peoples Interests in Non Territorialised Legal Orders

6.8. Promoting the Mobility of Human Bodies

THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO

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